There’s never been a better time for bail reform

What happens to defendants before they go to trial can have devastating personal and legal effects.

What happens to defendants before they go to trial can have devastating personal and legal effects.

by Darren Hutchinsonby Darren HutchinsonJuly 20, 2015

Professor Darren Hutchinson holds the Stephen C. O'Connell Chair at the University of Florida Levin College of Law.

(Photo courtesy Flickr user Joseph Kranak, CC 2.0)

In 1977, a Texas jury convicted Jerry Hartfield, a black man with an IQ of 51, of the murder of Eunice Lowe, a white woman. In 1980, a federal appeals court reversed the conviction, on the grounds that the trial court excluded a juror who expressed reservations about the death penalty.

Thirty-five years after the reversal, Hartfield remains in jail, waiting for a new trial. Hartfield, who dropped out of school in the fifth grade, apparently believed that his continued detention was permissible.

Only after another inmate alerted prison officials to his situation in 2006 were any motions filed on Hartfield’s behalf. Hartfield’s lawyers argued he should be released from custody because Texas had deprived him of his right to a speedy trial. The requests were denied. In 2014, the appeals court finally ruled that Hartfield could only challenge his detention after a retrial, which is scheduled for September.

Hartfield’s case, though extreme, highlights the widespread problem of prolonged detention in the United States. On any given day, U.S. jails hold 730,000 people awaiting trials for alleged crimes. Some of them will head to trial in a reasonable amount of time. Others will remain in pretrial detention for months or years, often because they simply cannot afford bail. In addition to inflicting severe economic, physical and emotional hardship, prolonged pretrial detention denies millions of people vital constitutional rights.

But the national conversation on criminality and social justice, which has been buzzing for several years, has recently grown louder, thanks to academic research, a number of high-profile cases, budget constraints and social media. It is time to eliminate the pervasive injustice faced by the accused before they go to trial.

When an individual is charged with a crime, a court can permit release without bail, set a bail amount or order pretrial detention. Bail can be used to prevent flight risk and to protect the public from additional crimes the defendant might commit before trial. But bail decisions disproportionately hurt people of color, the poor and the disabled.

Studies indicate that courts are more likely to view African Americans and Latinos as flight risks or public threats; these groups more often receive higher bail or mandatory pretrial detention. And because African Americans, Latinos and persons with disabilities are disproportionately poor, setting higher bail for them increases the likelihood that they will be unable to pay for release.

One study found that in 2008, 39 percent of all pretrial detainees in New York City were in custody because they could not afford bail. A 2013 study found that 50 percent of the city’s pretrial detainees could not afford bail of less than $2,500. In county courts across the nation, an average of 30 percent of pretrial detainees who are given bail less than $5,000 cannot afford the payment.

The inability to pay bail, however, does not explain prolonged detention. Trial delays primarily occur due to overly burdened criminal courts, prosecutors and defense lawyers. Clogged criminal-court dockets, in turn, are a direct result of the dramatic rise in the use of incarceration as method of social control in the United States — the outgrowth of the “tough on crime” mindset that pervaded the U.S. criminal justice system from the mid-1970s through the 1990s.

The U.S. prison population increased by 400 percent between 1973 and 2013; we incarcerate more people than any other nation. And while the United States is home to just five percent of the world population, our prisons house 25 percent of the world’s incarcerated population. The explosion of incarceration has substantially burdened the criminal process and slowed the pace of prosecution in many jurisdictions.

Prolonged pretrial tradition is inconsistent with U.S. legal norms because it infringes one of the most fundamental rights secured by the Constitution: the right to liberty. The government can detain defendants before trial, but pretrial detention must not constitute punishment, which can only occur upon conviction. When unreasonable and excessive delay occurs between arrest and trial, the distinction between pretrial detention and punishment is merely a facade.

Pretrial detention causes the same harms associated with incarceration: It separates defendants from family and friends, causes defendants to lose jobs and educational opportunities and contributes to recidivism. Pretrial detention can destroy intimate relationships and shatter familial bonds. Studies also indicate that conditions in prisons, such as violence, illicit drugs and emotional stressors, worsen inmate health — a problem compounded by inadequate physical and mental health care.

The recent death of Kalief Browder highlights the devastating impact of prolonged pretrial detention. Browder was arrested in 2010, at age 16, for allegedly stealing a backpack and assaulting the victim. The court imposed bail of $3,000, an amount that the teenager could not afford. Consequently, Browder was sent to Rikers Island to await trial. Prosecutors requested and received 31 continuances (one because the prosecutor was on vacation) while Browder waited. During his three years in jail, Browder endured physical abuse from guards and other detainees. He spent nearly 17 months in solitary confinement.

Browder finally was released after the prosecutor asked the judge to dismiss the charges. He left Rikers a broken young man, and in June, after two earlier suicide attempts, Browder ended his life.

Prolonged pretrial detention clearly deprives a defendant of his or her liberty without due process, and in Browder’s case, to tragic ends. Unreasonably long detention can also seriously undermine the right to a fair trial. As the Supreme Court recognized in Barker v. Wingo, lengthy pretrial detention can impair an effective defense because witnesses might leave the jurisdiction or forget facts that could help the defendant. Persons who are detained also have greater difficulty helping their lawyers build a defense.

Furthermore, extended detention can effectively coerce defendants to waive their right to a trial. Rather than enduring the hardship of detention, some defendants plead guilty, even if they are innocent. This creates perverse incentives for prosecutors, who can delay a trial in order to extract a plea, even when the state’s evidence is objectively weak.

Though defendants can challenge prolonged detention by raising various constitutional claims, the Speedy Trial Clause of the Sixth Amendment and the Excessive Bail Clause of the Eighth Amendment offer the most direct protection. But there are limits to constitutional law. Constitutional law is subject to judicial interpretation, and this can yield different outcomes for the same set of facts.

There is reason to believe judges might become more sensitive to this issue. Lawyers, human rights organizations, government officials and the public are scrutinizing injustices within the criminal process and seem to be experiencing an awakening regarding these pressing concerns, including prolonged detention. Browder’s case is certainly a factor, as are the highly publicized cases of Trayvon Martin, Michael Brown and Eric Garner, all of which have raised questions regarding equal justice and have sparked activism. Fiscal constraints are also causing lawmakers to rethink the costs of harsh criminal sentences. Bail reform is part of a broader movement to transform U.S. criminal law and enforcement.

The heightened attention to injustices within the criminal process has already led to meaningful reforms in some states and in the federal government. Cities and states have eliminated or curtailed the use of bail. The Department of Justice has limited civil forfeiture. Following a national outcry over police officers’ use of excessive force, several departments have revised their misconduct policies. President Obama recently visited a federal prison and called for major reforms to lower sentences and to reduce the number of people incarcerated in the United States.

Federal judges take cues from the president, Congress, state governments and the general public when they balance civil rights and public safety. The recent wave of social discourse reveals that many people believe the rights side of the equation has been detrimentally undervalued. That message might have reached some judges.

At an April House Appropriations Committee hearing, Supreme Court Justices Anthony Kennedy and Stephen Breyer responded to a question regarding prison crowding. Kennedy called the criminal justice system “broken” and said that expansive incarceration “isn’t working” and that it is “not humane.” Breyer called “mandatory minimum” sentences “a terrible idea.”

It is difficult to predict how the Supreme Court will decide cases based on the brief statements of two justices. The justices, however, usually refuse to comment on matters that will come before the court, so Kennedy’s and Breyer’s forceful public statements likely indicate that they have serious concerns with the U.S. criminal process.

Improving the criminal process will require more changes than reforms to bail and pretrial detention. Reforming bail and pretrial detention will not end excessive criminal statutes and sentences or invasive policing and racial discrimination; nor will it provide good legal counsel to indigent persons, repair the serious damages incarceration causes or address the structural issues — poverty and racial inequality — that encourage criminality. The public awakening to issues of injustice in the criminal process could heighten support for comprehensive reforms needed to safeguard the constitutional rights and dignity of Americans charged with crimes.

Professor Darren Hutchinson holds the Stephen C. O'Connell Chair at the University of Florida Levin College of Law.